2020 Criminal Law Forum Report
| Publication year | 2021 |
WELCOME AND OPENING REMARKS
On October 23, 2020, Hawai'i Supreme Court Justice Simeon R. Acoba (ret.), Co-Chair of the JAC, welcomed and thanked the attendees for participating in the virtual format. He explained that in this Forum series, judges, lawyers, and other interested parties are able to share their knowledge and experiences in order to maintain the viability of our legal system through this unprecedented time.
Hawai'i Supreme Court Chief Justice Recktenwald expressed his gratitude to the JAC for organizing the Forums and past Bench-Bar Conferences that have been a valuable source of input from the bar and other stakeholders, which the Judiciary seriously considers in mapping out future discussion for the courts.
Chief Justice Recktenwald mentioned pretrial reform as a notable example of important ideas generated by these Forums and conferences. From that work, the Criminal Justice Research Institute was formed to collect better data and conduct in-depth analysis to achieve better outcomes in the criminal justice system. He asserted that the Judiciary is committed to providing "even-handed justice" to all groups in the community and essential steps have already been taken to address racial equity through efforts such as bail reform and implicit bias training for judges and judicial staff.
Chief Justice Recktenwald noted that the business of the court changed because of COVID-19 ("COVID") and as of September 2020, more than 27,000 cases were heard remotely statewide. Jury trials, which present unique safety challenges, were postponed until the fall and were being relaunched in November 2020 on the neighbor islands and in December 2020 on Oahu.
Chief Justice Recktenwald said that an area of continued focus is the intersection of criminal justice and mental health. As a result of a mental health summit held in 2019, Act 26, which became law in September 2020, provides that non-violent defendants who are charged with petty misdemeanors are directed into proper community-based treatment. He expressed his gratitude to the participation of all attendees in this "important program."
JUDICIARY'S RESPONSE TO COVID
A. Technology and Platform Choices
Danielle Hirsch of the National Center for State Courts ("NCSC") expressed that the national consensus is that Zoom is the preferred platform for court use. The public is most familiar with Zoom, Zoom does not require a download, and it is user-friendly.
Zoom has also been found to be more flexible and agile than other platforms. Previous concerns about security have been alleviated and Zoom has become more versatile. Zoom is also the platform of choice for most law firms and attorneys.
1. Individual Circuit's Responses/Status
The District Court of the First Circuit has predominantly adopted Zoom. The Circuit Court of the First Circuit is attempting to transition completely to Zoom by July 2021 but continues to use Webex pursuant to its contract with Webex and Cisco. Nonetheless, Zoom appears to be the preferred platform in the First Circuit Courts.1
The District and Circuit Courts of the Second Circuit use Webex as their platform. One explanation for the continued use of Webex is the need to interact with certain state agencies, such as the Hawai'i State Hospital, which are configured for Webex.
The Circuit Court of the Third Circuit prefers the use of Zoom. However, Webex continues to be used most often.
Information on how to access both Zoom and Webex can be found on the Judiciary's website. The United States District Court for the District of Hawai'i also uses Zoom.
2. Security Concerns When Using Virtual Platforms
Application updates for the various platforms have largely addressed and alleviated security concerns. Disruptive behavior can often be resolved through the use of the mute function and video host controls. Mainland courts have used clerical staff to police improper use.
Some of the attendees expressed concern with Webex when dealing with confidential attorney-client conversations during virtual proceedings. Unlike Zoom, Webex does not have "breakout rooms," so attorneys must use cellphones to communicate with clients. In the First Circuit, confidential communications are difficult when clients are in custody.
3. Widespread Use of Virtual Platforms
Status hearings, arraignments, bail hearings and motions, evidentiary hearings, preliminary hearings, and dispositive motions have all been accomplished virtually both nationally and here in Hawai'i. Texas conducted civil jury trials with significant COVID precautions in place. These precautions involved medically recommended spacing, plexiglass and protective gear, use of larger venues, etc. It was found that enormous preparation was necessary to conduct virtual jury trials.
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The Circuit Court of the First Circuit has conducted every manner of proceedings except jury trials.2 Courts on the neighbor islands have similarly conducted a mix of remote and in-person proceedings. The court must follow Rule 43 of the Hawai'i Rules of Penal Procedure when determining if a defendant can appear via video or if their presence is required. The general public is allowed access to court proceedings via live streaming.
Similar to most jurisdictions throughout the United States, Hawai'i courts do not allow recording of proceedings. Written warnings are posted on court websites notifying participants of this policy. However, there are some users who want the courts to allow recordings. Some reasons against recording are misuse of the recordings, i.e., tampered with, modified or used inappropriately. There are also serious safety concerns involved in certain types of cases such as TROs, and family court matters. Courts have produced flexible responses to protect vulnerable victims during live streaming of testimony (i.e., child witnesses). Other jurisdictions carve out certain parts of the proceeding to make them inaccessible to the public. There is ongoing dialogue in many jurisdictions about this issue. Moreover, the court is responsible for maintaining the official recording of the proceeding - the "record of the case." A transcript of the recorded proceeding is available upon request from the court reporter.
Questions have arisen as to what happens if a defendant refuses to consent to appear remotely. A First Circuit Court Judge noted that over 90% of defendants who appear before him consent to remote proceedings. Circuit and District courts statewide, allow for "blended" proceedings, e.g., attorneys and clients may choose to appear remotely or in person. In the District Court of the First Circuit, preliminary hearings are conducted remotely. Due to an inadequate number of cameras available in each courtroom there are some limitations. Multiple cameras are necessary to allow for the visual presence of all parties in the proceeding.
The Judiciary currently lacks sufficient funds to equip each courtroom as needed and has assembled a committee to address this issue. To help alleviate this concern, the courts have allowed attorneys to provide laptop computers and cameras to assist witnesses.
A secondary problem with preliminary hearings in the District Court of the First Circuit is the significant time constraints involved with the use of the single room at Oahu Community Correctional Center ("OCCC") configured for video access. Each inmate is limited to an hour of remote conference use to allow for other inmate cases.
4. Benefits or Drawbacks of Virtual Proceedings
Hawai'i courts have noticed some immediate benefits of virtual technology through increased court attendance and participation. Participants are not required to leave work, do not have to expend valuable time traveling to and from court, and do not have to incur expenses such as parking. These reasons support the increased use of remote technology after the pandemic subsides. Hawai'i courts hope to review use and functionality statistics to determine which type of proceeding or matter is better suited to this new virtual technology.
B. Scheduling of Virtual Proceedings
(Panelists: Kevin Takata, Moderator, Danielle Hirsch, National Center for State Courts ("NCSC"), Judge Sherri-Ann L. Iha, and Judge Paul Wong)
1. Spacing of Cases Instead of Waiting Rooms
Attorneys and their clients have voiced concerns regarding "down time" spent in virtual waiting rooms. All courts seek to stagger cases instead of requiring individuals to remain in virtual waiting rooms for long periods of time. The District Court of the First Circuit uses a main room to check in participants and the online greeter will admit the participants into the breakout room when their case is called. The District Court of the First Circuit is also considering assigning an alphabetical letter to arrange the order in which each participant logged onto Zoom. Using this method will allow the courts to give preference to those who arrive early.
2. Staggering Virtual Court Appearance Times
Courts across the country that have large dockets were required to change their practices because of COVID. Courts are trying to be sensitive to individuals with limited bandwidth and data. A First Circuit Court Judge uses a staggered...
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